H-1B Cap Exempt ?


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1. In April 2009, my employer filed for a H-1B which was was approved for 3 years (October 2009-September 2012) and I worked for the employer on this approval from October 2009 to November 2010.


2. In November, 2010 I quit my job and returned back to India due to some personal reasons (Note: I did not get my H-1B visa stamping done).


3. The current status of my approval (WAC #) on USCIS shows the following - "Post Decision Activity - We reopened this I129 PETITION FOR A NONIMMIGRANT WORKER on December XX, 2010, and are now reviewing our earlier decision." I believe this means that my employer notified of termination of employment. 


4. I am currently looking to go back to the US and looking for opportunities there. However, before I do that on full scale, I want to clear out my visa issues and would request your inputs on the following queries:


             a. Since I was counted under cap once within the last 6 yrs, am I eligible to apply under Cap Exempt category ?




In this situation, can the employer use the old H-1B by applying a CAP exempt H-1B ? Also, in all likelihood, Krishna’s previous employer informed USCIS about the termination of employment and USCIS may have revoked my H-1B. Even in this case, would he be eligible to apply under CAP exempt category ?If yes to this question, then since Krishna was on H-1B for only 1 yr and 1 month (October 2009-Nov 2010), will he be able to revive 4 yrs and 11 months on his previous petition (6 yrs minus 1 yr 1 month) or will the duration of time that he can revive depend on when the employer notified USCIS about the termination of the job ?


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